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Monthly Archives: April 2014

Russia’s annexation of the Crimea, and its continuing mobilisation of military troops along the Ukraine’s eastern borders, brings into question yet again, the efficacy and relevance of international law’s prohibition on the use of force. Enshrined in Article 2(4) of the UN Charter, it is a cornerstone of the UN’s fragile system of collective security and appeal to multilateralism to maintain peace and security amongst states. Writing in 1970, the late Thomas Franck, Professor of International Law at NYU, asked ‘who killed Article 2(4)?’ In response, Louis Henkin quipped that reports of the death of Article 2(4) were ‘greatly exaggerated’.While it is true that states have, as Franck noted, ridden roughshod over the standards set by international law, it is notable that Russia – and others – have sought to justify their actions by appealing to international law’s often disputed norms. The Concept of the Foreign Policy of the Russian Federation, a statement on Russia’s core principles of foreign policy approved by Putin in February 2013, states Russia’s commitment to maintaining and strengthening the international rule of law, and somewhat ominously, to countering attempts by some states and groups of states to revise universally recognised norms of international law. Recalling, perhaps, recent tensions concerning Russia’s repressions of LGBT rights, the statement attacks the destructive and unlawful use of “soft power” and human rights concepts to exert political pressure on sovereign states. Instead it commits itself to promoting in international fora, Russia’s approach to human rights (emphasis added). In a comment that should perhaps have sounded alarm bells in the light of Russia’s use of force against Georgia in 2008, the statement also commits Russia to ensuring the comprehensive protection of rights and legitimate interests of Russian citizens and compatriots residing abroad.

Specifically the statement criticises ‘arbitrary and politically motivated interpretation of fundamental international legal norms and principles’, such as the prohibition on the use of force and the right of peoples to self-determination. Such interpretations, it points out ‘pose particular danger to international peace, law and order.’ These comments appear particularly pertinent today, as we reflect upon the implications for international relations of Russia’s recent actions. In a cryptic blog post last month, Eric Posner of Chicago Law School, sought to break the silence – as he put it – from the international law commentariat. Russia’s actions he noted violated international law butnothing would be done about it.

His comment is at least partly true. The legacy of a decade of military interventions by Western powers and expansive interpretations of doctrines of self-defence and of humanitarian intervention, have taken their toll. Appeals to the legality of military interventions to support co-nationals, to support self-determination, and in self-defence, have challenged international laws’ legitimacy and its authority to constrain the self-interest of states as they push at its limits. The claim that intervention followed an invitation from the now deposed Yanukovych, is a justification that was used to support the use of force by ECOWAS in Liberia and in Sierra Leone.

Russia’s willingness to exploit the contradictions in the practice of states, was evident in 2008 in its use of force against Georgia and the re-ignition of the so-called ‘frozen conflicts’ of South Ossetia and Abkhazia. There is also the legacy of Kosovo’s declaration of independence, and the cautious acceptance of this declaration by the international community, including Ireland. Ireland was however anxious to point to the exceptional circumstances that had led to Kosovo’s declaration, in particular the legacy of human rights abuses. The International Court of Justice, called upon to advise on the legality of Kosovo’s declaration, concluded that the declaration did not violate international law, there being nothing in the general principles of international law that prohibited such declarations. Its opinion, perhaps deliberately, left many questions unanswered, however, including what the legal consequences of such a declaration would be. Looking to the Court’s opinion to give answers to the Crimean situation is, we might say, like ‘Waiting for Godot’. Significantly, of course, Russia did not and does not recognise Kosovo’s declaration of independence.

There are, however, critical differences between Kosovo and the events in Crimea. The people of Kosovo had suffered a history of human rights abuses, particularly in the decade preceding NATO’s intervention, and the adoption of Security Council Resolution 1244. The same cannot be said of the Crimea’s recent history. And, in the Crimea, the holding of the referendum and the subsequent declaration of independence, was possible only with the threat or actual use of force by Russia – in clear violation of international law.

All of this to note that the ambiguities and uncertainties of international law are all too frequently exploited by states to their own ends. Self-interest continues to shape the practice of states, amid growing uncertainty concerning the path to be taken in Eastern Ukraine. Such challenges to the legitimacy and efficacy of international law are not new. While states all too frequently violate international law, they continue, to insist that they are acting in full compliance with its norms and standards, even at the risk, as Thomas Franck put it, ‘of failing the laugh test’. So too does Russia, and so too does it risk ‘failing the laugh test’.

One curious aspect of the Garda tapes controversy has been the focus that some commentators have placed upon the role of the Attorney General Máire Whelan and the misunderstandings as to the role of the Attorney.

Although the Attorney General was not mentioned in the Free State Constitution of 1922, the Office of Attorney General has existed since the foundation of the State. The Ministers and Secretaries Act, 1924 at Section 6 gave the office some post-independence legislative grounding charging the Attorney with representing the State in legal actions, prosecuting offences (a role which was taken over by the DPP in 1974) and the duty of advising the Government in matters of law and legal opinion. The First Attorney General post-independence was Hugh Kennedy, who was also elected to the Dáil as a TD in 1923 and served in both offices for a number of months. During the Dáil debates on what became the Ministers and Secretaries Act, 1924 a number of Deputies noted that there was significant confusing as to whether the Attorney was a member of the Government or not.

Article 30 of Bunreacht na hÉireann 1937 set out the constitutional position regarding the Attorney General and her role. There were few changes to the role with Article 30.1 confirming that the Attorney is an advisor to the Government in matters of law and legal opinion although there were a number of additional roles and responsibilities for the Attorney in the areas of references of Bills under Article 26 and the Council of State (of which she is an ex-officio member). Article 30.4 makes it clear that the Attorney is not a member of the Government and while the Attorney sits in on cabinet meetings as an advisor she is not a member of the government. This point is particularly important when it comes to the current debate around the Garda tapes.

It is, as yet, far from clear what exactly has transpired and what the long term effects of the Garda tapes controversy will be. It had appeared from initial reports that the Attorney General was aware to a certain extent that the practice of records was ongoing and that she has been working with the Commissioner investigating the matter since November [**but see update below]. It also appears that the Attorney approached An Taoiseach to further highlight the issues and additional details that have come to light, which, according to reports, arose in the context of ongoing litigation.

There have been questions both inside and outside the Dáil as to why the Attorney did not bring this to the attention of the cabinet sooner. However, in many ways, these questions miss the point. Firstly, it is unclear to what extent the Attorney was aware of the recordings and the systems in place with Garda Stations, as she clearly lacks any formal relationship with the force. Secondly, while I understand that it is practice for the Attorney to brief the Cabinet on important cases and working groups throughout the year, she could not possibly bring every case she works on to Cabinet and it is utterly unrealistic to expect her to do so.

Finally – and most crucially – the Attorney is clearly not a member of Government (as stipulated by Article 30.4 of the Constitution), but rather a legal advisor to the Government. She has no executive power whatsoever in relation to the Gardaí, the administration of justice or prosecution of offences; such power correctly vests in the Minister for Justice. It would simply have been outside of the Attorney General’s constitutional ambit to go any further than to advise the Government of matters as she became aware of them and their importance; she could not ever act unilaterally. The current Attorney has shown herself willing to give unpopular advice to the Government, particular in the context of the Referendum on the Fiscal Compact Treaty. Any attempts to scapegoat the Attorney for the current crisis would be wide of the mark based on the current information available.

[*Update: latest reports indicate that the AG was not aware of full extent of the systematic taping in November, was not a member of the working group established to look into the matter and only became aware of the extent of the system in place in the last few days.]